Court Decision May Lead to Better Accommodations for People with Disabilities

Court Decision May Lead to Better Accommodations for People with Disabilities

Editor: You probably know of the great work that’s been done on movie captioning and other accommodations in the last few years by John Waldo. We’ve certainly tried to keep you informed. Here’s a letter from John regarding a court decision that he believes may be very important in further expanding our rights to accommodations. It sure sounds like good news to me!

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July 2012

John Stanton of AG Bell alerted me this morning to a Ninth Circuit decision handed down Wednesday of this week that may prove to be at least as important to people with hearing loss as was the Harkins movie-captioning decision. The critical holding of the case is that a private businesses subject to Title III of the Americans with Disabilities Act (ADA) may have to provide accommodations that maximize our actual enjoyment of the business’s goods and services even if the business is providing an alternative accommodation that could be technically viewed as adequate.

The case is Baughman v. Walt Disney World Company. Here is a link to the opinion. http://www.ca9.uscourts.gov/datastore/opinions/2012/07/18/1055792.pdf

The plaintiff in that case had mobility challenges. She wanted to use a Segway to visit Disneyland. The park refused, and said that as an alternative, she should use a motorized wheelchair. The woman had previously sued Disneyland, apparently to establish a right to use the chair, and the case had been settled. So she was “moving the goalposts.” She said she wanted to use the Segway because sitting down for a long period of time was uncomfortable, and because she liked being “eye to eye” with other park patrons instead of having them look down on her. The trial court rejected her argument, though, saying that because the wheelchair was available, it was not “necessary” for her to use a Segway to patronize Disneyland.

The Ninth Circuit reversed. Writing for the court, Chief Judge Alex Kozinski said that “necessity” was not the appropriate criterion for whether an accommodation is required. He pointed out that strictly speaking, a mobility impaired individual couldn’t ask for a ramp because it is possible for the individual to crawl or be carried up steps. (This is the same argument Kozinski hauled out during oral argument in the Harkins case).

Here is what the opinion says:

“Disney’s (and the district court’s) error lies in ficating on a single word in the statute rather than reading all of the relevant words together. … The ADA guarantees disabled individuals more than mere access to public facilities; it guarantees them ‘full and equal enjoyment.’
…
Public accommodations must start by considering how their facilities are used by non-disabled guests and then take reasonable steps to provide disabled guests with a like experience.
…
Disney doesn’t dispute Baughman’s claim that using a motorized wheelchair or scooter would require her to stand and sit many times during her visit, or that doing so would be painful for her. Nor does Disney dispute that Baughman would feel more comfortable and dignified using a Segway. Disney simply takes the position that, even if Baughman’s access is made ‘uncomfortable or difficult’ by its policies, any discomfort or difficulty she may suffer is too darn bad. Disney is obviously mistaken. If it can made Baughman’s experience less onerous and more akin to that enjoyed by its able-bodied patrons, it must take reasonable steps to do so.”

This opinion changes a lot of things, and all for the better. It dignifies and gives substantial weight to our own subjective perceptions of an experience. Based on prior case law (and regulations), my opinion had always been that if a facility offers a facially reasonable accommodation, our preference for a different accommodation would be entitled to little or no weight. This case changes that, and seems to suggest that if a different accommodation will enhance our own subjective experience, the business will have to provide it if doing so is reasonable; that is, if it can be done at reasonable cost, safely, and without disrupting the operation of the business.

Now what does this mean for those of us with hearing loss? Here are just a few initial thoughts:

1) I do not think we would have to prove that a movie-caption viewing device like CaptiView is ineffective for everyone. If we find that it causes us eyestrain, we can ask for something else, provided, of course, that something else exists and can be provided economically. I’m pushing the envelope here, but this may even extend as far as asking for limited– and I stress limited — open-captioned showings.

2) I think this decision provides a basis for seeking installed loops rather than neckloops. We can argue that the hassle factor of checking out neckloops detracts from our experience, and that being able to walk into the theater, turn on our t-switches and enjoy the movie (or play) is an experience “less onerous and more akin to that enjoyed by able-bodied patrons.”

3) I think this drive a stake into any argument that hand-held receivers are adequate for captions at sporting events.

There will likely be a significant number of additional applications of this decision; for example, we may be able to argue that restaurants need to provide “quiet corners” so that we can enjoy a meal and conversations with our friends. I think it is fair to say, though, that this is a singularly empowering decision.

Now the question, of course, is whether it will hold up. It is possible that the U.S. Supreme Court could reverse it, and we will need to be vigilant about that possibility. For now, though, this is truly important and significant.

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